by Luigi Limone
1. 1. Introduction
On 23 September, the European Commission presented the new European Pact on Immigration and Asylum, a package of 12 documents, including several legislative proposals that will now be negotiated by the European Parliament and the Member States of the European Union (EU).The new Pact aims to break the deadlock on the reform of European asylum and immigration rules, already outlined within the April 2015 European Agenda on Migration, by seeking a balance between the perspectives of the different EU member states. Regarding most of the legislative proposals, including those on reception conditions, on conditions to qualify for asylum or beneficiary of international protection and on resettlement mechanism, the Commission invited the EU Council and the Parliament to resume the negotiations interrupted in the past years.
Furthermore, three new proposals were presented in the new Pact, focusing respectively on (i) a mandatory border screening or verification mechanism; (ii) new and faster asylum procedures at the borders followed, where appropriate, by an accelerated return procedure; (iii) the strengthening of conditionality between cooperation on readmission with third countries and the issuance of visas to their nationals.
The aim of these proposals is to reinforce the Union's borders and increasingly externalize the management and control of migration flows in third countries, consolidating the so-called "Fortress Europe" approach and further limitingrespect for the human rights of refugees and migrants.
2. The proposalestablishing an entry screening system
A first instrument that plays a key role in consolidating the trend towards externalization is the proposal for a Regulation introducing a mechanism for screening at the external borders of the Union, applicable to third-country nationals crossing the external borders without authorization. Screening will have to include identification procedures, health and security checks, fingerprinting as well as registration in the Eurodac database. [1]
As stated in the new Pact on Immigration and Asylum, thepurpose of screening is to speed up the process of determining the status of the third-country national and the type of procedure to be applied. More precisely, screening should help to ensure that the concerned third-country national is referred to the appropriate procedures as soon as possible, while also limiting possibility for absconding after entering the territory of the EU and trying to reach a Member State other than the one of arrival (the so-called "secondary movements"). Under the new concept, the screening procedure thus becomes the standard for all third-country nationals who irregularly crossthe borders of the Union, as well as for migrants and asylum seekers who are disembarked in a European port as a result of a search and rescue (SAR) operation at sea and for those seeking international protection at external border crossing points or in transit zones.
3. Accelerated asylum procedures at borders and returns
Another crucial element in the process of consolidating the "Fortress Europe" approach is the acceleration and streamlining of border procedures and the creation of a seamless link between the asylum procedure and return. The new Pact provided for the adoption of a new Regulation on asylum procedures, with the aim of promoting a reform of border procedures, establishing a link between the border procedure for asylum and return and introducing an accelerated procedure which, alongside the normal asylum procedure, is activated immediately after the screening phase and becomes mandatory for asylum seekers who arrive at the external EU border irregularly or following a landing operation and who:
(i) pose a risk to national security or public order;
(ii) have provided false information and/or documents or omitted relevant information and/or documents;
(iii) come from a third country for which the share of positive decisions in the total number of asylum decisions is less than 20%.
During the border procedure, the applicant is not granted access to the territory of the EU. Asylumseekersarethereforekeptwithinakindoflimbozoneattheexternalborder,wherenormaloracceleratedasylum procedures and related return decisions are carried out. If an asylum claim is rejected as a result of a procedure at the border,the return procedure automatically applies. The introduction of a system of this kind institutionalizes the transition from a Europe of reception and rights to a Europe of borders, migration controls and expulsions.
4. Cooperation with third countries: strengthening conditionality between readmission agreements and visa issuance
In Chapter 6 of the new Pact on Immigration and Asylum, the European Commission proposed to introduce conditionality between cooperation on readmission with third countries and the issuance of visas to their nationals. This conditionality was legally established in the proposal for revision of the Visa Code Regulations, presented in 2019, and is functional to strengthening the effectiveness of return mechanisms for which cooperation with countries of origin is deemed crucial. Underlying this proposal is the European Commission's desire to strike a balance between migration and security concerns on one side and economic considerations and the EU's external relations on the other. However, in seeking to make returns effective, the Commission fails to take into account an important element: readmission has asymmetrical costs and benefits with different economic, social and political implications for the countries of origin. Unlike some third countries in the Balkansor Eastern Europe, third countries in Middle East and Africa have no prospect of joining the EU bloc or having a visa-free regime for their citizens. This makes any attempt to compare the Balkan countries' responsiveness to readmission cooperation with that of other countries of origin excluded from the possibilities of a visa-free regime extremely difficult, if not impossible. Hence the reluctance of some countries to cooperate on the readmission of their citizens.
It can therefore be concluded that a more effective cooperationin the field of readmission cannot be achieved only through measures to mitigate the EU policy on the issuance of visas.
5. Conclusions
The proposals described above aim to limit access to rights, jurisdiction and territory of the Union for third-country nationals by creating a "low density" Europe protected by stronger and more difficult-to-cross external bordersand a limbo zone close located at or close to the external borders where third-country nationals are detained pending screening and completion of the asylum procedure. This system is therefore intended to control access to the territory of the Union for third-country nationals and to link the failure of the asylum procedure at the border to more rapid and immediate return mechanisms. Although the Commission's rhetoric stresses the elements of novelty, openness and solidarity contained in the new Pact, there are good reasons to argue that the provisions of the Pact further develop and consolidate existing policy trends in the field of immigration and asylum, which are increasingly moving in the direction of policies of externalization, containment and control of migration flows, to the detriment of the recognition and protection of the fundamental rights of refugees, asylum seekers and migrants.
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References [1] Eurodac is the biometric database set up by the European Union to record the fingerprints of asylum seekers and citizens of non-EU countries entering EU territory.